Okaloosa County BOCC — November 3, 2015 — Pictometry Contract — reading text

received assistance in the use of the Online Service from a Covered Party, (f) any delay or fililure in performance beyond the reasonable control of a Covered Party, or (g) any content retrieved from the Internet even if retrieved or linked to from within the Online Services. 5.2 "Covered Party" means (a) Pictometry and any officer, director, employee, subcontractor, agent, succcssor, or assign of Pictometry; and (b) each third party supplier of any Licensed Content, third party alliance entity, their affiliates, and any officer, director, employee, subcontractor, agent, successor, or assign of any third party supplier of any Licensed Content or third party alliance entity and thcir affiliates. 5.3 TO Til E FULLEST EXTENT PER MISSII3LE BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES WILL THE AGGREGATE LIABILITY OF THE COVER ED PARTI ES IN CONNECTION WITH ANY CLAIM ARISING OUT OF OR RELATING TO THE ONLINE SERVICES OR T1-IE LIC ENSED ONTENT OR THIS LICENSE AGREEMENT EXCEED THE LESS ER OF YOUR ACTUAL DIRECT DAMAGES OR THC AMOUNT YOU PAID FOR THE ONLINC SERVICES IN THE TWELVE MONTH PERIOD IMMEDIATELY PRECEDING THE DATE TIlE CLAIM AROS!:. YOUR RIGHT TO MONETAR Y DAtVlAGES IN THAT AMOUNT SHALL BE IN LIEU OF ALL OTHER REMEDIES WI [(c[ I YOU MA Y HAVE AGAINST ANY COVERED PARTY . 5.4 TO THE FULLEST EXTENT PER MISSIBLE BY APPLICABLE LA W, NEITHER you NOR THE COVERED PARTIES WILL BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER (INCLUDING, WITHOLT LIMITATION, ATTORNEYS' FEES) IN ANY WAY DUE TO. RESULTING FROM, OR ARISING IN CONNECTION WITH THE ONUNI: SERVICES, THE LIC ENSED CONTENT, OR THE FAILURE OF ANY COVERED PARTY TO PERFORM ITS OBLIGAT[ONS. THE FOREGOING L1M[TATION OF LIABILITY SHALL NOT APPLY TO A PARTY 'S INDEMNITY OBLIGATIONS OR YOUR (AN D YOUR ELIG IBLE USERS') INFRINGEM ENT OF INT ELI.ECTUAL PROPERTY OR MISAPPROPRIATION OF PROPRIETARY DATA BELONGING TO PICTOMETRY OR ITS THIRD PARTY SUPPLIERS. 5.5 Notwithstanding anytbing to the contrary in this Section 5: (a) ICthere is a breach of the warranty in Section 4.1 above, then Pictometry. at its option and expensc. shall either defend or settle any action and hold you harmless against procecdings or damages of any kind or description based on a third party's claim of patent, trademark, service mark, copyright or trade secret infringement related to use of the Online Services or the Licensed Content, asserted against you by such third party provided : (i) all use of the Online Services and the Licenscd Content was in accordance with this License Agreement; (ii) the claim, cause of action or infringement was not caused by you modifying or combining the Online Services or the Licensed Content with or into other products. applications, images or data not approved by Pictometry; (iii) you give Pictometry prompt notice of such claim; and (iv) you give Pictometry the right to control and direct the investigation, defense and settlement of such claim. You, at Pictometry's expense, shall reaso nably cooperate with Pictometry in connection with the foregoing. (b) [n addition to Section 5.5(a), if the Online Services, the operation thereofor the Licensed Content become, or in the opinion of Pictometry are likely to become, the subject of a claim of infringement, Pictometry may, at its oplion and expense, either: (i) procure for you the righl to continue lIsing the Online Services or the Licensed Content, (ii) replace or modify the Online Services or the Licensed Content so that they become non-infringing; or (iii) terminate the License Agreement on notice to you and grant you a pro-rata refund or credit (whichever is applicable) for any pre-paid fees or fixed chargcs. (c) The provisions of Sections 5.5(a) and (b) shall constitute your sole and exclusive remedy for the respective matters specified therein. 6. MISCELLANEOUS 6.1 The terms and conditions of this License Agreement may be changed from time to time immediately upon notice to you. If any changes are made to this License Agreement, such changes will (a) only be applied prospect ively; and (b) not be specifically directed against you or your Eligible Users but will apply to all similarly situated Pictometry customers using the Online Services. You may terminate this License Agreement upon written notice to Pictometry ifany change to the terms and conditions of this License Agreement is unacceptable to you. For termin atio n to be effect ive under this Section 6.1, written nOlice of termination musl be provided to Piclometry within 90 days of the effective date of the change. Co ntinued use of the Online Services following the effective date of any change constitutes acceptance of the change. but does not affect the foregoing termination right. Exccpt as provided above, this License Agreement may not be supplemented. modified or otherwise revised unless signed by dul y authorized representatives of both parties. Furthermore, this License Agreement may not be supplemented, modified or otherwise revised by email exchange, even if the email contains a printed name or signature line bearing signature-like font. The forcgoing does not prohibit lhe execution of electronic contraclS bearing electronic signatures ofaulhorized represent atives of both partics. provided such signatures include digital certifications or are otherwise authenticated. 6.2 In the event of a breach of this Licensc Agreement by you , any Lligible User or someone using the Pictometry Credential of an Eligible User, Piclometry may temporarily suspend or discontinue providing access to the Online Services to any or all Eligible Users without notice and Pictometry may pursue any othcr lega l remedies available to il. 6.3 All notices and other communications hereunder shall be in writing or displayed electronically in the Online Services by Pictometry. Notices shall be deemcd to have been properly given on the date deposited in the mail, ifmailed; on the date firsl made available. if displayed in the Online Services ; or on the datc received, if delivered in any other manner. Legal notices to Pictometry should be sent to Pictometry, Attn: General Counsel, 100 Town Centre Drive, Suite A. Rochcster. New York 14623 . 6.4 The failure of you, Pictometry, or any third party supplier of the Online Services or any Licenscd Content to enforce any provision hereof shall not constitute or be conslrued as a waiver of such provision or of the right 10 enforce it at a later time. 6.5 Neither you nor any Eligible User may assign or otherwise transfer your rights or delegatc your duties under this License Agreement without the prior writtcn consent of Pictometry. Any attempt by you or any Eligible User to assign, transfer or delegate your rights or obligations under this License Agreemcnt without Pictometry's consent shall be void, and shall also void the limited license granted to you by this License Agreemcnt. This I.icense Agreemcnt and any amendment thereto shall be binding on, and will inure 10 the benefit of the parties and their respective successors and pcrmined assigns 6.6 Thi; License Agreement shall be governed by and interprcted in accordance with Ihe laws of the Stale of New York, excluding its contlicts of law principles Unless you are a government entity, in the event that any legal procecdings are commenced with respect to any matter arising under Ihis Page 9 of 15 Okaloosa Co unty, FL - C 170390 20 I51 007 CMT-00047-20 150 121  License Agreement, the parties specifically consent and agree that the courts of the State of New York or, in the alternative, the Federal Courts located in the State of New York shall have exclusive jurisdiction over each of the parties and over the subject matter of any such proceedings, and that the venue of any such action shall be in Monroe County, Ncw York or the U.S . District Court for the Western District of New York, as applicable 6.7 This License Agreement will be enforced to the fullcst extent permitted by applicable law. Ifany provision of this License Agrecment is held to be invalid or unenforceable to any extent, then (a) such provision will be interpreted, construed and reformed to the extent reasonably required to render it valid, cnforccable and consistent with its original intent and (b) such invalidity or unenforccability will not affect any other provision of this License Agreement. 6.8 Whcre applicable, each affiliated company ofPictomctry and each third party supplier of the Online Services or any Licensed Content has the right to assert and enforce the provisions of this Licensc Agreemcntdirectly on its own behalfas a third party beneficiary. 6.9 In thc event of a breach of your obligations under this License Agreement or your payment obligations with respect to access to the Online Services or the Licenscd Content, you agrce to pay all of Pictometry's costs of enforccment and collection, including court costs and reasonable attorneys' fees. 6.10 This Liccnse Agreement constitutes the entire agreement of the parties with respect to its subject matter and replaces and supersedes any prior written or verbal communications, representations, proposals or quotations relating to that subject matter. [END OF ONLINE SERVICES GENERAL TERMS AND CONDITIONSI Page 10 of 15 Okaloosa County. FL - C 170390 20151007 CMT-00047-20 150 121 SECTION B LICENSE TERMS PICTOMETRY SOFTWARE LICENSE AGREEMENT PLEASE READ THIS SOFTWARE LICENSE AGREEMENT ("LICENSE") CAREFULLY BEFORE DOWNLOADING,INSTALLING OR l'SE\G THE SOFTWARE. BY USlNG THE SOFTWARE, YOU AGREE TO THE TERMS OF THIS LICENSE. IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENSE, DO NOT DOWNLOAD, INSTALL OR liSE THE SOFTWARE. I. GENERAL. The software ("Pictometry Software") and any written materials that accompany the software ("Docu mcntation") in any media or form are li ce nsed. not sold. to you by Pictometry International Corp. (" Pictometry") for use only under the term s of this License. Pictometry reserves all rights not expressly gra nted to you in thi s Liccnsc. 2. LICENSE. Subject to the terms and conditions of this License, you are granted a limited, non-transferable, terminable, non-sublicenseable, non-exclusive license to install and use the Pictometry Software and the Documcntation (coll ectively, the "Proprictary Materials") solely for internal use. Use of the functionality provided by the Pictol11ctry Software other than for your internal use is prohibited, except with the prior written approval of Pictometry. You may makc one copy of the